Leon said:
Definitely wait until you are 18 or even 19. It will not hurt your chances and if you apply before 18, you would need your parents permission to go. At age 18, you would have reached the age of majority in some provinces in Canada and at 19 in all of them. You do not need a medical to apply. You can find the application form here:
Thank you for your help. In case I am rejected PR status, what is the procedure to get this appealed as in this case
REASONS FOR DECISION
[1] These are the reasons for the decision in the appeal of Raymond Jonathan HERTANTO (the “appellant”), from a determination made by a visa officer outside Canada concerning his failure to comply with the residency obligation set out in the Immigration and Refugee Protection Act (the “Act”).[1]
[2] Section 28 of the Act[2] requires a permanent resident to be physically present in Canada for at least 730 days in the five-year period immediately prior to their application for a travel document. The visa officer held that there were insufficient humanitarian and compassionate considerations, taking into account the best interests of a child directly affected by the decision, to justify the appellant’s retention of his permanent resident status overcoming the breach of the residency obligation.
[3] The appellant is not in Canada. However, he participated by way of teleconference and provided oral evidence under affirmation. The appellant’s parents were present in person and provided oral evidence under affirmation.
ISSUE
[4] The appellant does not challenge the legal validity of the visa officer’s decision but argues that the appeal should be allowed on the basis that sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case, taking into account the best interests of any child directly affected by the decision.
DECISION
[5] I have come to the conclusion the refusal is valid in law. However, there are sufficient humanitarian and compassionate grounds, in light of all the circumstances of the case, taking into account the best interests of a child directly affected by the decision, for me to find in the appellant’s favour. Therefore, the appeal is allowed.
BACKGROUND
[6] As background, the appellant is 23 years old and a citizen of Indonesia. The appellant obtained permanent resident status on June 17, 2002.
ANALYSIS
[7] The appellant does not challenge the legal validity of the visa officer’s decision. He admits that he had not been physically in Canada for the requisite period. On the basis of that evidence and the materials contained in the Record, I find that the appellant has not met the residency requirements imposed under section 28 of the Act and the refusal to issue a travel document is valid in law.
[8] However, I also have the discretion to allow the appellant’s appeal on humanitarian and compassionate grounds, taking into account the best interests of a child directly affected by the decision, in all the circumstances of the case. Prior decision-makers of the Immigration Appeal Division have established the following appropriate, although not exhaustive considerations, namely:
the appellant’s initial and continuing degree of establishment in Canada;
the reasons for departure from Canada;
the reasons for a continued or lengthy stay abroad;
ties to Canada in terms of family;
whether reasonable attempts to return to Canada were made at the first opportunity; and
generally whether there are unique or special circumstances present in the case.
Unique or special circumstances may be the relationship the appellant has to family in Canada, their personal circumstances, the family’s circumstances in Canada, any interdependency between the appellant and the family in Canada and any other relevant factual circumstances.
[9] The appellant became a permanent resident when he was 14 years of age. He accompanied his parents as a dependant child. The appellant only remained in Canada for about four weeks when his parents decided he should return to Indonesia to complete his high school education. His father remained in Canada at that time but returned to Indonesia after about seven months. The appellant said his father had difficulty finding suitable work in Canada.
[10] The appellant completed high school in 2004 when he was 16 years old. His parents determined that he should attend university in Singapore. The family was residing in Indonesia at that time and could not afford for the appellant to attend school in Canada. The appellant qualified for a full scholarship in Singapore.
[11] The appellant’s parents and sister returned to Canada in 2006. At that time the appellant and his brother were both students at university in Singapore.
[12] The appellant graduated from university in Singapore in 2008. He applied for a travel document on Octobers 13, 2008 and the refusal letter of October 29, 2008 is the subject of this appeal.
[13] The appellant testified that as a condition of his scholarship, he was required to work for a Singapore company for three years after his graduation.[3] He stated he will have completed his obligation by September 2011 and intends to reside in Canada after that time if he is successful in his appeal.
[14] The appellant stated that his brother had Asperger’s Syndrome and required some degree of care. However, I find that the evidence is that the appellant’s involvement with his brother’s care was minor and not a significant factor in his remaining outside of Canada.
[15] I find that there are unique or special circumstances present in the case. The appellant was a minor at the time he became a permanent resident and was still a minor at the time university attendance decisions were made. Once acceptance was made of the full scholarship in Singapore, it was not reasonably open to him to stop his schooling there when he turned 18. Similarly, the appellant was not free to return to Canada immediately upon graduation from university due to the terms and conditions of the scholarship agreement.
[16] I find that the appellant, as a minor, was essentially bound by decisions made by his parents on his behalf. Even when they and his sister returned to Canada in 2006, he was not free to accompany them due to decisions already made on his behalf. The appellant did apply for a travel document on his graduation in 2008 and intends to reside in Canada upon completion of his three year work period in Singapore. I find that, in essence, the appellant is returning to Canada at the first opportunity, congruent with commitments made on his behalf when he was a minor. I concur with submissions from counsel for the respondent that positive indicia relating to establishment and hardship are not met in this case. However, I find that the unique circumstances of this case establish sufficient humanitarian and compassionate circumstances to warrant special relief.
CONCLUSION
[17] It is therefore my decision that the visa officer’s determination of the contravention of the residency obligation is legally valid. However, taking into account the best interests of a child directly affected by the decision, there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case. This appeal is allowed.
NOTICE OF DECISION
The appeal is allowed. The decision of the officer made outside of Canada on the appellant’s residency obligation is set aside. The Immigration Appeal Division finds that the appellant has not lost his permanent resident status.
